In the Matter of the Adoption of P.H., R.H., and Z.H., Three Minors, Amber Hrdlicka v. Mollie Hrdlicka

2020 Ark. App. 178

• Court: Court of Appeals of Arkansas
• Decided: March 18, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 178 ARKANSAS COURT OF APPEALS DIVISION II No. CV-19-259

IN THE MATTER OF THE ADOPTION Opinion Delivered: March 18, 2020 OF P.H., R.H., AND Z.H., THREE MINORS APPEAL FROM THE GARLAND AMBER HRDLICKA COUNTY CIRCUIT COURT APPELLANT [NO. 26PR-17-549]

V. HONORABLE LYNN WILLIAMS, MOLLIE HRDLICKA JUDGE APPELLEE AFFIRMED

RITA W. GRUBER, Chief Judge

Amber Hrdlicka appeals from the circuit court’s order denying and dismissing her

petition to adopt her three stepchildren without the consent of the children’s mother,

appellee Mollie Hrdlicka. Amber argues that the circuit court erred in finding that Mollie

did not fail without justifiable cause to communicate with the children for a period of at

least one year and thus that consent was required for the adoption; in denying her petition

for adoption without hearing evidence regarding the best interest of the children; and in

denying her motion for new trial. We affirm the circuit court’s order dismissing the

petition.

On January 12, 2016, appellee Mollie and appellant’s spouse, Kurt Hrdlicka,

divorced after a twelve-year marriage. They separated in April 2015 due at least in part to Mollie’s drug use. Kurt and Mollie have three minor children, temporary custody of whom

was placed in Kurt in May 2015 pursuant to an agreed order. In the final divorce decree,

Kurt was given custody of the children subject to supervised visitation with Mollie. The

parties’ agreed child-custody and property-settlement agreement, which was incorporated

into the divorce decree, provided specifically:

The supervised visitations will be administered by Joann Carter at Change Point located at 201 Nickels Street, Hot Springs, Arkansas 71901 for period of eight (8) visits. Upon satisfactory completion of the eight (8) visits, all drug screens being clean and upon approval by Joann Carter, wife shall be entitled to unsupervised visitations on alternating weekends upon providing proof that she has suitable housing for the parties’ minor children. Wife shall be subject to random drug screens at the request of the husband or the Court. If husband requests wife to take a drug screen, he shall be responsible to pay the cost of the drug screen, but shall be reimbursed by wife in the event that she has a dirty drug screen.

The decree also provided that Mollie should pay no child support for five years in exchange

for forfeiting her equity in the marital residence to allow Kurt and the children to remain

there.

The parties agree that Mollie has not visited the children since the divorce decree

was entered and that her last visitation occurred on May 30, 2015, at a Chick-Fil-A during

their separation. According to Kurt, Mollie began cursing loudly in front of the children

and caused an “embarrassing scene” after which she went to the marital home where Kurt

lived with the children and “threatened to kill” Kurt with a drywall hatchet. The divorce

court entered an order on June 25, 2015, suspending Mollie’s visitation and prohibiting

her from going to the parties’ residence. In connection with these events, Mollie also spent

approximately three months in the Garland County Detention Center during the summer

2 of 2015. She testified that she sent letters to the children from the detention center but

that Kurt and Amber intercepted them, so she then sent letters for her children to her

mother’s house.

After the divorce decree was entered in January 2016, Mollie admitted that she

continued to struggle with addiction until mid-2016. She was incarcerated from March

through June 2016 in the Pike County Detention Center. She said that she mailed letters

to the children while she was there. She testified that she requested visitation through

Change Point “many, many times,” including after she was released from jail in June 2016,

but Kurt refused. Kurt testified that he refused to allow the children to visit because Mollie

had not provided a clean drug screen, which he paid for and told Mollie when and where

to go. However, he produced only one text from him to Mollie dated February 2016

stating, “Drug test 2:00 tomorrow hot springs paramedical 633 e grand.” Joann Carter

testified that Mollie requested visitation in 2016 and 2017, that she notified Kurt of the

requests, that Kurt denied the requests without a clean drug screen, that Mollie asked

Joann where to get tested, and that Kurt never told Joann where to send Mollie. Mollie

claimed she asked but was not informed where to get tested.

On July 27, 2016, Mollie filed a motion for contempt against Kurt for refusing to

allow her supervised visitation. Mollie was incarcerated in Arkansas Community

Corrections (ACC) from August 9, 2016, through May 4, 2017. She testified that within

two weeks of her release, she again requested visitation through Change Point, but Kurt

3 again refused. She filed a petition for contempt on September 5, 2017, to enforce her right

to visitation.1

Amber testified that she and Kurt decided it was in the best interest of the children

to stop Mollie’s correspondence with the children. They were concerned about the content

of the letters, including one stating that she was purchasing a house while in prison. Amber

called ACC and explained there was a no-contact order prohibiting Mollie from sending

letters to the children, which prevented any further written communication from Mollie.

On September 14, 2017, Amber filed a petition for adoption of Mollie and Kurt’s

three children, attaching Kurt’s consent. Amber alleged that she was married to Kurt and

that Mollie’s consent was not required because Mollie “had failed significantly to support

or communicate with the minor children for a period of more than one year without

justifiable cause.”2 Mollie answered, denying the allegations and affirmatively pleading that

two petitions for contempt had been filed in her divorce case due to Kurt’s refusal to allow

her visitation and stating that she was not required to pay child support for five years after

the divorce in exchange for her relinquishment of her rights in the marital home.

1 She filed a third petition for contempt in June 2018 when Kurt refused to attend court-ordered mediation on the matter. 2 Consent to adoption is not required of “a parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree[.]” Ark. Code Ann. § 9-9-207(a)(2) (Repl. 2015).

4 The circuit court bifurcated the hearing, trying the issue of consent before trying the

issue of best interest. On January 15, 2019, the court entered an order denying Amber’s

petition for adoption, finding that Mollie’s consent was necessary because she had not

failed significantly for a period of one year without justifiable cause to communicate with

her children. The court noted the specific language regarding visitation in the parties’

divorce decree, which did not require Mollie to pass a drug screen before each of the eight

supervised visits. Specifically, the court found that Mollie began requesting visitation in

May or June 2016 and filed a petition for contempt in July 2016 because Kurt refused to

bring the children to Change Point for supervised visitation. The court found that Mollie

never received any visitation before she began serving her nine-month sentence in ACC.

The court found that upon her release, she again requested and was denied supervised

visitation and filed another motion for contempt. The court noted that the case was

ordered for mediation, which Kurt refused, prompting Mollie to file a third petition for

contempt on June 19, 2018. The court found that Amber and Kurt “unjustifiably blocked

communication and visitation between Mollie and the minor children.”

Amber filed a motion for new trial, rearguing the evidence of Mollie’s efforts to

communicate and alleging that the circuit court’s decision was contrary to the

preponderance of the evidence. Amber asserted that she had not received a full and fair

hearing because the circuit court precluded her from presenting evidence on the children’s

best interest to show that Mollie was unreasonably withholding her consent. The motion

5 was deemed denied when the circuit court failed to rule after thirty days. Amber filed this

timely appeal.

Generally, consent to an adoption is required by the mother of the minor child to

be adopted. Ark. Code Ann. § 9-9-206(a)(1) (Repl. 2015). However, Arkansas Code

Annotated section 9-9-207 provides that consent to adoption is not required of “a parent

of a child in the custody of another, if the parent for a period of at least one (1) year has

failed significantly without justifiable cause (i) to communicate with the child or (ii) to

provide for the care and support of the child as required by law or judicial decree[.]” Ark.

Code Ann. § 9-9-207(a)(2) (Repl. 2015). Adoption statutes are strictly construed, and a

person who wishes to adopt a child must prove by clear and convincing evidence that

consent is unnecessary. In re Adoption of J.N., 2018 Ark. App. 467, at 7, 560 S.W.3d 806,

812. Clear and convincing evidence is defined as that degree of proof that will produce in

the fact-finder a firm conviction as to the allegation sought to be established. Posey v. Ark.

Dep’t of Health & Human Servs., 370 Ark. 500, 262 S.W.3d 159 (2007). We will not reverse

a circuit court’s finding that consent is unnecessary because of a failure to support or

communicate with the child unless clearly erroneous. In re Adoption of J.N., 2018 Ark. App.

467, at 7, 560 S.W.3d at 812. A finding is clearly erroneous when, although there is

evidence to support it, the reviewing court on the entire evidence is left with a definite and

firm conviction that a mistake has been made. Id. In resolving the clearly erroneous

question, the reviewing court defers to the circuit court because of its superior opportunity

to observe the parties and to judge the credibility of witnesses. Brumley v. Ark. Dep’t of

6 Human Servs., 2015 Ark. 356. We view the issue of justifiable cause as factual but one that

is determined largely on the basis of the credibility of the witnesses, and we give great

weight to a circuit court’s personal observations when the welfare of young children is

involved. Rodgers v. Rodgers, 2017 Ark. 182, at 4, 519 S.W.3d 324, 327 (citing In re Adoption

of K.F.H. & K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993)).

For her first point on appeal, Amber argues that the circuit court erred in finding

that Mollie’s consent was required because it found justifiable cause for any failure by

Mollie to communicate with the children. The parties do not dispute that Mollie had not

seen the children from May 30, 2015, until Amber filed the petition for adoption in

September 2017. The question is whether the court’s finding that Kurt “unjustifiably

blocked communication and visitation between Mollie and the minor children” and thus

that Mollie had a justifiable cause is clearly erroneous.

“Without justifiable cause” means that the significant failure must be willful in the

sense of being voluntary and intentional; it must appear that the parent acted arbitrarily

and without just cause or adequate excuse. In re Adoption of J.N., 2018 Ark. App. 467, at 8,

560 S.W.3d at 812. Here, Amber argues that the testimony was inconsistent regarding

whether Mollie sent letters and how many and that Mollie failed to present any such letters

or cards at trial. She also points to inconsistencies in the testimony about the number of

times Mollie asked for visitation, arguing that her minimal efforts did not constitute the

“ongoing efforts” necessary to require her consent. Amber also contends that Kurt paid for

drug screens and notified Mollie of the times and locations for these screens but that

7 Mollie refused to comply in order to obtain her requested supervised visitation. She argues

that Kurt required them for visitation because Mollie had failed drug tests in the past, the

divorce decree permitted him to require her to take random drug screens, and Kurt did not

want the children around Mollie unless she was drug-free. Amber argues that Mollie also

never contacted Kurt directly to request visitation even though she had his phone number.

Finally, Amber argues that whether the divorce decree required Mollie to submit to drug

testing in order to have supervised visitation is irrelevant because three letters, three

requests for visitation, and two unprosecuted petitions for contempt were minimal efforts

and not of the type or frequency necessary to constitute communication with the children.

Amber’s arguments require us to reassess the evidence and the witnesses’ credibility,

particularly Mollie’s. We will not reweigh the evidence on appeal or second-guess the

circuit court’s credibility determinations. See, e.g., Westbrook v. Ark. Dep’t of Human Servs.,

2019 Ark. App. 352, at 5, 584 S.W.3d 258, 262. The divorce decree does not require

Mollie to pass a drug screen to obtain the eight supervised visitations through Change

Point. Mollie testified that she requested visitations many times during 2016 and 2017

when she was not incarcerated. Joann Carter’s testimony supported this. Kurt specifically

stated that he refused her requests because she did not obtain a drug test at the times and

places he set up; however, it was not clear from the testimony whether Mollie was notified

of these times and places. Mollie filed three petitions for contempt to enforce her right to

visitation. Mollie also testified that she wrote letters to the children while she was in

Garland County detention, Pike County detention, and ACC. Amber stopped the

8 correspondence by informing ACC that Mollie was not allowed to send the children

letters. The court’s findings regarding consent were not clearly erroneous.

For her second point on appeal, Amber contends that the circuit court erred in

denying her petition for adoption before hearing testimony regarding the best interest of

the children and concerning whether Mollie was unjustifiably withholding her consent

contrary to the best interest of the children. She claims this constituted a “de facto grant of

summary judgment and a violation of her due process rights.” She argues that despite her

objections, the circuit court bifurcated the case into two separate hearings: one regarding

whether Mollie’s consent was required under Ark. Code Ann. § 9-9-207 and one regarding

the best interest of the children. Because the court determined that Mollie’s consent was

required and it had not been obtained, the court denied the adoption petition without a

hearing on best-interest grounds.3 She alleges that this was error.

First, Amber did not “object” to the bifurcated hearing. At the conclusion of the

first day of the adoption hearing, the following colloquy occurred:

COURT: … do y’all want to try the consent interest by itself and come back at a later date for the best interest of the child?

MOLLIE’S COUNSEL: I would.

3 Before an adoption petition may be granted, the circuit court must find by clear and convincing evidence that the adoption is in the best interest of the child. Hollis v. Hollis, 2015 Ark. App. 441, at 7, 468 S.W.3d 316, 320; see also Ark. Code Ann. § 9-9- 214(c) (providing the court may issue a final decree of adoption if at the conclusion of the hearing the court determines the required consents have been obtained or excused and adoption is in the best interest of the individual to be adopted).

9 AMBER’S COUNSEL: I’d prefer to try it all at the same time, but —

THE COURT: It’s y’all’s money we’re about to spend because you’re asking Brenda Simpson —I mean I have no idea how I’m going to rule. It’s a blank, total blank slate, but I was just thinking —

MOLLIE’S COUNSEL: I’d prefer to split it, Your Honor.

AMBER’S COUNSEL: We’ll do two separate hearings, Your Honor.

Moreover, once the circuit court found that Mollie’s consent was necessary in this case, a

finding on best interest was not necessary because Mollie had not consented.

Second, Amber did not preserve the issue regarding whether Mollie was

unjustifiably withholding her consent. Arkansas Code Annotated section 9-9-220 provides

a mechanism in an adoption case for a parent to voluntarily relinquish his or her parental

rights or for the court to order termination on legal grounds including abandonment,

neglect or abuse, and “in the case of a parent not having custody of a child, his or her

consent is being unreasonably withheld contrary to the best interest of the child.” Ark.

Code Ann. § 9-9-220(c) (Repl. 2015). Although a petitioner for adoption may pursue

termination against a parent in connection with an adoption proceeding, the statute

requires a petition for termination to be filed and served. Ark. Code Ann. § 9-9-220(f)

(Repl. 2015). Amber’s petition for adoption alleged only that Mollie’s consent was not

required because she had failed to support or communicate with the minor children for a

period of more than one year without justifiable cause. Amber did not request termination

of Mollie’s parental rights pursuant to section 9-9-220 or allege that Mollie’s consent was

10 being unreasonably withheld. She did not raise this argument until her motion for new

trial, which is too late to preserve the issue for our review. See, e.g., Jones v. Double “D”

Props., Inc., 352 Ark. 39, 48–49, 98 S.W.3d 405, 410–11 (2003). Thus, we will not address

it on appeal.

Finally, Mollie argues that the circuit court abused its discretion in denying her

motion for new trial.4 She argues first that the circuit court abused its discretion for failing

to allow her to put on evidence that Mollie’s consent was being unreasonably withheld

contrary to the children’s best interest. She also argues that she did not receive a fair

hearing because the court appeared to be biased against her attorney. The abstract is devoid

of any objection or motion to recuse due to this alleged bias, and Amber failed to raise this

issue in her motion for new trial; thus, we will not consider it here. Dodson, 345 Ark. at

440, 47 S.W.3d at 872. Turning to the argument that Amber was denied a full and fair

hearing on the issue of Mollie’s consent having been unreasonably withheld, we reject this

argument for the reasons stated above.

She also argues that the court abused its discretion for failing to grant her a new

trial because the court’s decision regarding consent was contrary to the preponderance of

the evidence. Again, as we discussed above, the court’s decision that Mollie did not fail

without justifiable cause to communicate with the children for a period of at least one year

4 We will reverse a circuit court’s grant or denial of a motion for new trial only if there is a manifest abuse of discretion. Dodson v. Allstate Ins. Co., 345 Ark. 430, 440, 47 S.W.3d 866, 872 (2001).

11 is not clearly erroneous; thus, its decision to deny Amber’s motion for new trial is not an

abuse of discretion.

Affirmed.

HARRISON and WHITEAKER, JJ., agree.

Tripcony May, by: Heather M. May, for appellant.

Brian L. Johnson, for appellee.